Published: April 18, 2013. sikhsiyasat.com

New Delhi, India (April 18, 2013): It is a known fact that Prof. Devender Pal Singh Bhullar was sentenced to death by the trial court solely on the basis of a fractured and uncorroborated confessional statement extracted by the Delhi police in custody through torture. Prof. Bhullar’s case was heard by three judges bench of the Supreme Court of India, that confirmed the conviction in a split decision – with majority of 2:1.

Free Professor Devender Pal Singh Bhullar

Justice M. B. Shah – the presiding judge of the three judges bench had acquitted Prof. Devender Pal Singh Bhullar; while two other judges Arijit Pasyat, J. and Aggarwal, J. had confirmed the death sentence.

The 2002 decision of the Supreme Court of India, confirming death punishment in a split decision was being view as a “judicial error” – and it was expected that the President of India would take it’s notice while deciding the constitutional review petition. The President of India took eight years to decide the petition moved on behalf of Prof. Bhullar but suffered the failure to take notice of the judicial error and cleared the execution of Prof. Bhullar in 2011.

In it’s recent judgement declared on April 12, 2013 the Supreme Court of India has again upheld the death sentence awarded to Prof. Bhullar.

It seems as if whole Indian system has turned blind eye towards the “judicial error” committed in this case. But there are few dissenting voices also that have dared to oppose the ominous unity among various organs of the state favouring execution of Prof. Bhullar.

Recently, the Press Council of India’s chairman Justice Markandey Katju wrote a detailed letter to the President of India. Citing the basic flaws in the decision confirming death sentence in Prof. Bhullar’s case; J. Katju has demanded pardon for Prof. Bhullar.

As per recent media reports Senior Advocate Anoop G. Chaudhari, who was the public prosecutor against Prof. Bhullar while his case was being heard by the SCI in 2002, has admitted that the minority judgement of Justice M. B. Shah acquitting Prof. Bhulalr was good in merit.

“[t]hough two of the three judges on the Supreme Court bench upheld his arguments, senior advocate Anoop G. Chaudhari said that he found himself agreeing with the dissenting verdict delivered by the presiding judge, M. B. Shah, who had actually acquitted Bhullar”.

“Surprising as it may sound, I believe that Shah was right in not accepting my submissions in support of the trial court’s decision to convict Bhullar in a terror case, entirely on the basis of his confessional statement to the police,” Chaudhari reportedly told TOI.

“Shah refused to acquiesce to the Delhi police’s presumption that they had a lot of margin for shoddy investigation because of the involvement of terror”

– Advocate Anoop G. Chaudhari

As per news report, a former advocate general of Madhya Pradesh, Chaudhari also said that it was “most inappropriate” for the majority verdict, delivered by Justice Arijit Pasayat, to have awarded death sentence to Bhullar despite the acquittal by a member of the same bench.

In any event, this “judicial error”, he said, should have been taken by the home ministry as a “strong ground” for commuting the death penalty, when it made its recommendation to the President on Bhullar’s mercy petition in 2011.

“Did the home ministry think that the acquittal by a Supreme Court judge was meaningless?” Chaudhari asked.

But how could he be saying all these things in Bhullar’s favour, given his own role in the case? “After the judgement is delivered, I read it as a student of law and not a lawyer who appeared for one or the other party,” Chaudhari said.

“If I can’t detach myself from the case and appreciate the judgement in its correct perspective, then I won’t be honest to my profession and my conscience”, he reportedly added.

One of the major infirmities in the prosecution’s case pointed out by Shah was the failure of the police to find any corroboration for Bhullar’s confessional statement to them, even he had retracted it.

“When Shah asked me about this lacuna during the hearings, I said that I could only argue what was on record and I could not step into the shoes of the investigating agency and explain why they had not taken the trouble of finding any corroborative evidence” Chaudhari said.

We have been learning to live with your preachy and highfalutin’ commentaries for some time now. We also tolerate the preachy and abominable drivel of a suitably unenlightened Asaram Bapu and his PR officer occasionally.

However, allow us to pick your scientific brains on a few issues and questions which, given your professional background and the current sinecure, should be a walk in the Lutyens’ park for you when it comes to addressing these queries. We urge you to take advantage of the authority conferred by your experience, age and current station in life – and the wisdom that is supposed to emanate thereof – and pitchfork us all out of the cesspool of ignorance that we have been wallowing in thus far.

Here are 7 issues that have been bothering us. None of these have anything to do with malnutrition, Jurassic Park, Congress and secularism, I assure you. We wish to stick to your knitting – the Press and the Criminal Justice System.

First. We find it alarming that a person of your stature – and one who is fearless to boot – advocates such a defeatist attitude on the issue of voting. (Indians vote like cattle)

You have been quoted as saying, “I won’t vote because my vote is meaningless. Votes are cast in the name of Jats, Muslims, Yadavs or Harijans. Democracy is not meant to be run like this. Why should I waste my time in joining the cattle queue?”

PTI

Truth be told, we find your argument in support of your stated stance terribly odious, and one that is repugnant in its elegant sophistry. Instead, would empowering the citizens of the country with information so that they vote responsibly, be a better way to deal with this quagmire? For instance, there are about 900 million citizens who own a cellphone – and by sending a text they can access some vital details about the candidates contesting from their respective constituencies. Have you tried it Justice Katju? I urge you to click here to know more about this tool. It just might compel you to vote in future. While I am at it, I might as well ask for a pony for my birthday – could you, Justice Katju, request the Mainstream Media to highlight this simple sms tool when the hustings draw nigh?

I also bring to your attention this report titled “Do informed voters make better choices? Experimental Evidence from Urban India”. For a brief outline, click here. Once you have read it, I am sanguine that instead of advising us not to vote, you will start focusing on how to leverage your current position as Chief of the Press Council to herd us all [the great unwashed, the sheeple] towards much-needed information on candidates before we vote. It could be a game-changer, Justice Katju. Do run it by Rahul Gandhi if you happen to meet him.

Second. You say we have criminals lodged in the dark underbelly of the temples of democracy. Correct. So what have you done about it? Taken any initiatives to stem the rot while you were a part of the Criminal Justice System? Written any detailed papers on how to address this malaise ever? Filed any PILs lately? If not, then have you at least read and fully understood what Vohra Committee, Gupta Committee, Goswami Committe and a few others had to say on this and pushed for the implementation of those recommendations? Have you examined the fineprint of Section 8(4) of the Representation of People Act? There are a couple of PILs in the Delhi HC and the SC related to these issues – could you tell the nation on National TV what these are about, without resorting to a farrago of legalese?

Third. Why does the State deny us our right to punch None of the Above [NOTA] on the EVM? Why are legal luminaries like you not standing up for our rights? I suspect you will now throw form 17(A) under Rule 49(0) at me – which then begs the question: why is there such a stunning silence by all concerned on this important choice that is available to a voter?

Fourth. I now turn my attention to Perjury. How seriously do the constituent elements of the Criminal Justice System take this offence? What happens when elected representatives indulge in perjury – does the Judiciary interact with other constitutional bodies like the EC to suitably punish such violations? For instance, let me draw your attention to the self-declared sworn affidavits submitted by a certain Mr. Anil Kumar, MLA [Himachal Pradesh]. Click here for more details. Do you see what I see, Justice Katju? You are a man of science and scientific thinking, as you tirelessly remind us; could you please use your analytical mind, check the affidavits and let us know if there is, prima facie, a case of perjury and/or misrepresentation of facts. Hint: Immovable Assets.

Fifth. Let us now turn our attention to the plight of the Judiciary. Is it not true that there are only 13.5 Judges for every 1 million citizens in India, against the global norm being approximately 70? Furthermore, did the SC [in 2002] direct all parties concerned to improve this ratio to 50 per million in 5 years? Could you take us through the steps taken by the Judiciary and the Government to achieve this goal? Your sincerity of purpose, and adequacy of aim – that is what this country needs, Justice Katju. Not the aimless psychobabble that you normally indulge in.

Sixth. You, who are the PCI chairperson, have expressed some trenchant views in the past on how the media revels in the trivial and the silly. No disagreements there. There is also the issue of paid news and soap operas like Radiagate. However, carping is for us citizens – on the other hand powerful people like you who are utterly non-idiotic, should be doing something about it. Hence I draw your attention to the Leveson Inquiry and humbly ask you if there is any such panel that has been instituted in India to examine the issue holistically? Who are the panel members? By when can the nation expect a set of guidelines and recommendations – as against the usual gobbledygook and poppycock – on this critical issue?

Seventh. As I understand, Prisons and reformation form the final link of the Criminal Justice System. While we have taken note of your bleeding heart, on the issue of Sanjay Dutt’s pardon [by the way, we did notice that your graceful gesture towards Zaibunissa Kazi was a reaction to the brouhaha AFTER the stuff hit the fan], could you share with us some possible solutions that can be deployed to ameliorate the plight of the under-trials in Indian jails? During your tenure as a HC and SC Judge, did you pursue this matter with anyone of any importance? What came out of those discussions? What is the total capacity of all the prisons in India and how many people are actually lodged in those jails? Are the under-trials housed with the general population of convicts, Justice Katju?

You usually have an opinion on almost all issues; yet I notice that you have maintained a studied silence on the matters highlighted above. Why is that Justice Katju? Has sticking to one’s knitting gone completely out of fashion?

On a lighter note, we are quite saddened by the fact that you have not watched any movie for over 40 years. However, I strongly recommend that you take some time out to watch one particular movie; in fact, you ought to invite Dr. Subramanian Swamy and the two of you could watch it together. The lead actor is of Italian descent – as was Al Capone. These Italians, I tell ya!

The Untouchables – that’s the name of the movie. May we Flipkart you a copy?

It has been felt for quite some time that injustice is being done to a large number of people who have been languishing in jail either as under trials whose cases have not been heard for several years, or who have unjustly remained incarcerated, either because:

The police have fabricated evidence against them, or

For want of proper legal assistance, or

Who have had to spend many years in jail and ultimately found innocent by the court.

Many of such persons in jail belong to minorities who have been accused only on suspicion and on pre-conceived notions that all persons of that community are terrorists. Whenever a bomb blast or such other terrorist event occurs, the police often is unable to trace out the real culprit, and yet it has to show that it has solved the crime. Consequently very often the police rushes to implicate and charge a large number of youths of that minority community on mere suspicion, whose bail application is very often rejected and consequently they have to spend several years in jail. In such matters either the police often fabricates evidence against them to justify their acts and secure conviction, or the cases result in acquittal of innocent accused persons after they have spent several years in jail. A classic case is of that of a young boy Aamir who was 17 years of age when arrested, and who spent 14 years in jail after which he was found innocent.

In the 6th April 2013 issue of Tehelka there is an excellent article by Shoma Chaudhry entitled , ‘The Fight for Muslims is fundamental for the survival of Democracy’. In this article she has stated that over the past few years TEHELKA journalists have documented hundreds of stories of innocent Muslims languishing in jail after being brutally tortured on flimsy or false charges. Each case hides hair raising stories about prejudice, incompetence and deliberate malafide, and also mentions stories of pain, destroyed lives and hollowed futures.

Shoma writes that innocent Muslims have been jailed with impunity in India over the past decade because it was easy to jail them. Within hours of any terror attack, a bunch of Muslim boys would be arrested, and their names aired in the media as ‘Masterminds’. Their guilt was assumed, it did not need to be proved.

Since 2001 a terrible maxim had seeped into the Indian mainstream: All Muslims may not be terrorist, but all terrorists are Muslims. It did not matter if you caught the wrong ones. Everyone only wanted the illusion of security and “action taken”. Those who raised hard questions were scorned as ‘anti-national’.

In my interview with Karan Thapar on ‘Devil’s Advocate’ I said that within hours of a terrorist attack in India many media channels start showing that an email or SMS has been received from ‘Indian Mujahideen’ or ‘Jaish-e-Muhammad’ or ‘Harkat-ul-Jihad’, or some other organization having a Muslim name, claiming responsibility. Now an email or SMS can be sent by any mischievous person. But by showing this on TV screens, and the next day in print, subtle message is sent that all Muslims are terrorists, and thus the entire community is demonized.

All this is triggering new cycles of hate and revenge. Despair turns citizens into perpetrators, from the hunted to the hunter. Young men who have spent long years in jail cannot find jobs or houses to rent even when acquitted, their families are ostracized, and sisters find themselves unmarriageable because their brothers have been branded as terrorists.

Unless this cycle of hate is now reversed we are heading for terrible times, for injustice breeds hatred and violence

Criminal investigation is a science, but unfortunately in our country the police usually is not trained in scientific investigation nor does it have the equipment for the same. If we read the stories of Sherlock Holmes, we see how Holmes investigates a crime by promptly going on the spot and studying the finger prints, blood stains, soil, ashes, handwriting etc. before coming to a scientific conclusion. In recent times it has been shown on Discovery Channel etc. how the American police investigates a crime. The police reach the spot and collects the traces of the material there including blood stains, fingerprints, ashes, fibres, etc. The finger prints are fed into a computer which is connected to a national computer network, which can often lead to the discovery of the criminal. The blood stains etc. are taken to a laboratory where they are tested for DNA etc. Even a few microscopic fibres can lead to the discovery of the culprit by testing them in a laboratory and thus finding out his identity.

All this is usually absent in our police set up and yet the police has to show that it has solved the crime, otherwise the investigating officer fears suspension for incompetence. Consequently he either implicates people on suspicion or resorts to the time honoured method of torture or third degree methods to obtain a confession.

All this is leading to injustice on a large scale. We are not blaming the courts for this because they are handicapped due to the enormous burden of litigation for which cases linger on for years and years. Also, unfortunately nowadays the real eye witnesses are afraid to give evidence out of fear of threats or harassment, and hence the police often fabricates evidence.

The result of all this is that in our country gross injustice is often done, particularly to minorities, and the time has now come when this great wrong must be set right. Our country is a country of great diversity and therefore no community must be made to feel that it is being selectively victimised.

This being the situation it has been decided by a group of people headed by Justice Markandey Katju, former Judge, Supreme Court of India, and the eminent lawyer Mr. Majeed Menon, the film producer and social activist Mr. Mahesh Bhatt, Mr. Asif Azmi and other like-minded people to setup an organisation called ‘The Court of Last Resort’.

The concept of this idea has come from an organisation founded way back in 1948 by the eminent American criminal lawyer Erle Stanley Gardner, who later wrote the Perry Mason novels. In his book ‘The Court of Last Resort’, Erle Stanley Gardner mentions about the organisation which he set up consisting mainly of lawyers, who took up cases of persons whom they thought were wrongly accused or unjustly convicted. The organisation which we are starting in India will bear the same name ‘The Court of Last Resort’ and have its headquarters in New Delhi, with Justice Katju as its patron and will have state units in all states of India. Such state units will be authorised to appoint district units.

‘The Court of Last Resort’ will have the following objects:

To ask the concerned authorities in various states about details of prisoners languishing in jails, particularly those who have been in jail for long periods, including both under trials and convicts. The R.T.I. Act can be used in this connection.

To examine the cases of persons, whether of our own accord, or on the representation of someone, and find out whether there has been injustice in their case, either by the delay in holding the trial, or by a wrong conviction, and do the needful in this connection, including applying for bail.

To apply for pardon, respite, suspension or reduction of sentence to the President or Governor as the case may be.

To create awareness in the public about this gross injustice which is being done to a large number of people.

To educate the police about this state of affairs and change its mentality.

To approach the other concerned authorities with the aim of rectifying this injustice to a large section of people.

To do such other acts as may be necessary for this purpose.

The organisation appeals to the like-minded people among the public, particularly to lawyers, retired judges, academicians, students, social activists, professionals, media persons , etc. to help and get associated with this enterprise.

The formal inauguration of this body will be done through a press conference in the near future.

It is made clear that this is being done for no personal benefit to any of us but purely because of our sincere desire that justice should be done to everybody, and no section of society is made to feel that it is being discriminated against.

In his letter to them, Justice Katju said media reports indicated that no evidence had been found against Mr. Mirza by the National Investigation Agency, which also refused to file a charge sheet against him.

If no evidence is found, “he should be reinstated forthwith in the post he was holding before he was sacked.”

Justice Katju also asked that adequate compensation be paid, and an open apology be tendered by the Central/State government to Mr. Mirza for the ‘torture and indignities in jail’ he suffered.

The letter comes a day after Justice Katju’s appeal to the media to exercise restraint in their coverage of blasts, and to refrain from falsely implicating Muslims even before investigations are complete.

I have been criticised by some politicians, lawyers and others for being outspoken on some issues unrelated to the press while being the Chairman of The Press Council of India (PCI). As a result, it is time now for my response.

The main attack on me is that since the PCI discharges quasi-judicial functions, its Chairman should not speak on non-media issues.

First of all, let me say that if a matter comes up before the PCI when it is exercising quasi-judicial functions involving an issue or a person about which or whom I have expressed my view, I will immediately recuse myself from the deliberations and decision on it. In quasi-judicial matters I do not make decisions on my own. Rather, it is the PCI which, by majority vote, makes decisions. There are 28 members of the PCI apart from the Chairman. If I recuse myself then the other members will deal with the matter as they deem fit. What then is all the hullabaloo about?

It is then said that a judge should not comment on public issues except when a case comes before him. I reply by saying that I am not a judge but a retired judge. It may be pointed out that the post and functions of the Chairman of the PCI are very different from that of a judge.

First, while a judge has only judicial functions (except the power given to High Courts under Article 235 of the Constitution of administrative control over the subordinate judiciary), the Press Council not only performs quasi-judicial functions under Section 14 of the PCI Act of adjudicating complaints by or against the press, but also preserves the freedom of the press and maintains high standards of journalism, vide Section 13. Second, the High Court and Supreme Court have powers which the PCI does not have. Example, the power to issue writs; punish for contempt of court; quash orders of administrative authorities; issue directions in a PIL, etc. There are several other differences between judges and the Chairman of the PCI. How then can the two posts be treated as equal?

I have repeatedly said that I am not only Chairman of the PCI but also a citizen of India. The PCI Act contains no provision prohibiting me from speaking on non-media issues (though, as I have already said, if a matter comes in quasi judicial proceedings of the PCI on which I have expressed my view I will recuse myself from the deliberations and decision). Hence, I will continue speaking on such issues, particularly when it is, in my opinion, a matter of grave importance for the nation, no matter what some people might say. I have a fundamental right under Article 19(1)(a) of the Constitution (which gives the freedom of speech to all citizens) to speak on such matters even while remaining the Chairman of the PCI.

A charge is made against me that I am a government servant and a government appointee and am therefore doing the bidding of the government. To this my reply is as follows: first, the Chairman of the PCI is not appointed by the government but selected under s.5(2) of the PCI Act by a selection committee comprising: 1. the Chairman of the Rajya Sabha (the Vice-President of India) 2. The Speaker of the Lok Sabha, and 3. a representative of the PCI (who is not appointed by the government but chosen democratically by the members of the PCI). It was this body which unanimously selected me. Second, I am not a government servant but an independent statutory authority. It is true that s.7(1) describes me as an “officer,” but the word “officer” does not necessarily mean a government servant. One word can have several meanings, and it depends on the context in which the word has been used. The word “officer” in s.7(1) means a person holding an office. That the Chairman of the PCI is not a government employee is borne out by several features: 1. An employee is usually under the supervision and control of a superior, but the Chairman of the PCI has no superior 2. Employees have ACRs (annual confidential reports) but there is no ACR of the Chairman 3. An employee can be suspended and (if he is on a transferable job) transferred, but the Chairman can neither be suspended nor transferred 4. The Government Servants’ Conduct Rules do not apply to the Chairman of the PCI.

No doubt the salary of the Chairman is paid by the government (the appointment letter states that the Chairman will get the same salary, benefits and amenities as a sitting Supreme Court Judge), but then salaries of High Court and Supreme Court judges are also paid by the government. Does that make such judges government employees?

To those who said that I have only criticised non-Congress governments I have already given my answer in various TV discussions that I have frequently criticised Congress governments too, examples being of Maharashtra, Himachal Pradesh and Delhi. I accuse such persons of twisting facts.

I would not have even bothered to give this explanation but for the misleading comments made by some persons which could have misguided the public.

In his latest attack on Modi, Katju has written in a Pakistani newspaper, criticising the Gujarat chief minister, holding him responsible for the 2002 riots in the state.

The BJP hit out at the former Supreme Court judge over his latest article “Should malnourished children of Gujarat eat roads, electricity and factories, which Modi has created?”

Gujarat BJP leader Jay Narayan Vyas said, “I am not surprised with this. Justice Katju is a retired justice. They (people in Pakistan) would try to establish a relation similar to Nazism. It proves that it is an irresponsible statement. There are some reasonable restrictions also. The enemy country uses it for making a case at international level.”

“We can’t expect them to leave such an opportunity. They have related the Nazi massacre with the Gujarat case. Justice Katju should follow the reasonable restrictions. The government has acquired a soft status on the cross-border terrorism. The UPA government is divided in many segments. It think the government has failed in this aspect also like in economic aspect,” Vyas said holding the UPA government responsible for the PCI chief’s attack on Modi.

BJP spokesman Prakash Javadekar said, “What Justice Katju writes is not taken seriously by anyone. But if someone writes about internal Indian politics in Pakistan, then an issue rises that if a judge can get involved in internal politics. He mentioned that he wrote so as an independent citizen. If Katjuji wants to do politics, then he should do politics.”

“Everybody has a freedom to write and express. He says he is writing in his capacity as a citizen… He is an active member of ‘hate Modi campaign’. He is doing politics. He cannot separate his two roles when he is already heading a constitutional body,” he said.

Foreign Minister Salman Khurshid, however, defended the PCI chief and the UPA government in the latest controversy.

“Justice Katju is a retired officer. In our nation, everyone has a right to put forth his/her views. Where does it get published, we cannot have a control over that,” the minister said.

More and more issues are going to the courts. Is it a failure of the other institutions of our system?

No, it will be wrong to say that. With economic progress and development, all these things are bound to come. It is human nature and there will be disputes. It is part of the system. You can’t visualize a society without the judiciary. You can’t imagine a democracy minus the judiciary. You can as well go to China then. Once I was in Beijing and I happened to meet the Chief Justice of China. I asked him, “What do you do if your prime minister or other top officials don’t follow your order?” He said nothing. He asked me, instead, so what would you do? I told him that I can send them to jail for six months if they don’t follow the court verdict. He was surprised. So, if you have a democracy, you have to have a judiciary.

Do you see any flaws in the current judicial set-up?

You can’t say that any institution is flawless. There is a difference between the judges and the judiciary. Some judges may be proper, some may be corrupt. Judges come from the same society from where you come. He must be having someone in the family who is a politician or a bureaucrat. We don’t import judges. So the aberrations we are seeing are a reflection of the society. It’s not a failure of the institution. If you compare the judiciary with other institutions, then I can very proudly say that it is much better. People still have confidence and faith in the judiciary. They have not started saying that going to the court is going to be useless. So, till the time people have this confidence, I feel we need not worry much. The only thing we should be worried about is this: whatever corruption has seeped into the judiciary, as a reflection of the degeneration of the society, the judiciary as an institution should try to rectify it.

‘I would have lodged an FIR against Narendra Modi on charges of genocide and manslaughter. I said it in the open court’

What are your observations on recent judgements on PILs, like the one on 2G?

I have entertained so many PILs during my tenure. I started doing it after the Gujarat riots in 2002. A State-sponsored genocide was on, and nobody had the courage to speak against it. The prime minister was quiet, the deputy prime minister did not utter a word, the president also did not say a thing even after so many people had been killed. All the accused were being let off. It was then that I took it up. There were 400 cases and I read the FIR. I am amazed that even after carrying out such a big investigation, they did not find anything. I just read the FIR and concluded that it was a State-sponsored genocide.

I will tell you two cases. Best Bakery was set on fire at 6:45pm. There was a thousand-strong mob which had surrounded Best Bakery and set it on fire. Understand the topography and you can easily conclude that it is a State-sponsored genocide. At a furlong a police patrol van is stationed, it is also mentioned in the FIR. One-and-a-half-kilometre away is the police station. An ACP is sitting there, according to the FIR. Then it goes on to say that at 11:45pm the fire recedes on its own. These are the broad facts. Now, tell me, a fire brigade could have gone and doused the fire? Some lives could have been saved. Why didn’t that patrol police van go and intervene? I read the FIR and concluded that it is a State-sponsored genocide. I said, had I been in a position, I would have lodged an FIR against Narendra Modi on charges of genocide and manslaughter. I said it in the open court. So, in such circumstances, what inquiry do you need – when even one fire extinguisher couldn’t come, nobody could even throw a bucket of water!

Now, see the Gulbarga society case. Ehsan Jafri calls the police and an ACP comes. Jafri is not the only one there; there are many more people in his house. The ACP tells Jafri, I can take you from here. He refused and said, how can I go alone when there are so many others? He said, I will go only if you take the others. The ACP just refused. The moment this ACP leaves, Jafri’s house is set on fire. Why didn’t any fire extinguisher come to this society which is in the heart of Ahmedabad? Scores of people were charred to death.

So, at this stage, I took the PILs. If democracy has to function, then it is the duty of the majority to protect the minority. Who constitutes the government? It is the majority. And when they failed in this duty, that is when I took up theGujaratcase. So, when you see the system has failed, then you have to take up such causes.

Some recent judgements have faced a lot of criticism. Top legal luminaries have termed as ‘hyper-activism’ the way in which the judiciary is intervening in policy-making. What do you think?

I, too, believe that in a couple of cases they went too far. They should not push their ideology in deciding cases. They should not colour the judgements with their ideology. It is going too far. It may sometimes rebound. But in their wisdom they have done it.

What about the 2G case, the way licences have been cancelled?

In the 2G case, you can’t say that all the private firms bribed their way in. It is the responsibility of the government to ensure the trust of investors, that their investments are safe. But when you engage in misappropriation, then it reflects on other clean deals as well. This has very bad implications on investments coming into the country. Firms from Norway and other countries have started to show their apprehensions already.

How does one maintain checks and balances?

Everyone has to work on his own turf. There should be no intrusion. Only in cases where there is inaction, if the executive is not enforcing law, or not fulfilling its duty, then the judiciary can step in and direct it to enforce the law.

The way they have done in the black money case, by laying down a policy…

Black money and all, you can’t lay down a policy. You can direct them to change the policy. But even that is going too far, stretching it too far. Judiciary is not supposed to run the government. They could have checked whether the government is acting upon it, they could have asked them to submit progress reports to the court. But what manner it is to be done, the policy matters, are to be decided by the government.

Again, in the 2G case, the court said only auction should be done…

It is all right, when there is so much corruption, then auction seems to be the only viable option. In the auction system, it is to be seen whether it (auction) is for everything, and then, how will the poor cope up with it in front of the moneybags…

Don’t you think that instead of directing for an auction, in this case where a national resource is involved, the court could have left the decision to the government?

Yes, I too feel it should have been a little flexible. Suppose you want to part with government resources to develop weaker sections of the people, the minorities etc, there you can’t impose this system, this won’t work. Suppose you have to give houses to the poor, you can’t auction them.

In the 2G case, one of the defences was that this has made mobile telephony cheaper for the masses…

There, you see, the corruption is so apparent. Some hundreds of crores have been transferred in the accounts. Had all this not happened, then I think the court would have been lenient. The court, perhaps, took all that into consideration. And it is not final, it can be reviewed sometime later.

You think it should be reviewed?

I wouldn’t say it should be. A case can be reviewed on the basis of the circumstances prevailing in that particular period of time.

There is a larger belief that the powerful get away easily even in the judicial system. However, we saw in recent cases that many powerful people were kept in pre-trial detention for a long period. Do you agree that the courts got influenced by public pressure?

(Laughs) You must never say that. I think they act on the content of law rather than public pressure. I never got swayed by public pressure. You have to give justice based on the law.

Do you think they should have got bail?

Yes, because, normally, in economic offences people get bail. But, as I told you, the reflection of society can be seen on the courts as well. There was a wave against corruption, this scam, that scam, and then, as you said, the feeling that the powerful get away easily. Sometimes the powerful don’t get bail, like in this case. All these contradictions are there. These are all opinions of society. The best way is to act according to the law.

Do you feel that many of the judgements are politically coloured?

I wouldn’t call it political. They are perhaps coloured by public opinion.

What about the Ayodhya judgement?

(Laughs) The original suit was a civil suit and they partitioned it. Partition suit is different. Where did the question of partition arise? But, then, as I said, they must have, perhaps, acted as per public opinion and gave something to all the aggrieved parties. Legally, it is not correct.

Then there is this whole debate on frivolous PILs…

Yes, it is very rampant. During my tenure, I even constituted a committee to scrutinize and look into the merits of a PIL, and whether it is fit for consideration. We made some norms. The committee of judges was to decide if the PIL has merits for the benefit of society, for people of the country. Otherwise, it was rejected.

There are allegations that some lawyers act at the behest of corporates… We have seen allegations against people like Subramanian Swamy that they are targeting one political party. Does any such thing exist?

It may be. Because even I used to get a lot of complaints that there are certain lawyers who are sponsored by corporate houses. Some corporate house gets a licence, and then the other party takes recourse to PIL. And the lawyers make a lot of money. I got many such complaints. But I did not have the power to investigate lawyers on any such complaint. I could have investigated the judges, but I could not investigate the lawyers.

How does one deal with this menace?

Actually, it is because the Bar Council is weak. The disciplinary authority in this case is the Bar Council, and it doesn’t do anything. What does a judge know if the lawyer has taken money? And then, even the media highlights (some cases).

What about the 2G case, the way licences have been cancelled?

In the 2G case, you can’t say that all the private firms bribed their way in. It is the responsibility of the government to ensure the trust of investors, that their investments are safe. But when you engage in misappropriation, then it reflects on other clean deals as well. This has very bad implications on investments coming into the country. Firms from Norway and other countries have started to show their apprehensions already.

How does one maintain checks and balances?

Everyone has to work on his own turf. There should be no intrusion. Only in cases where there is inaction, if the executive is not enforcing law, or not fulfilling its duty, then the judiciary can step in and direct it to enforce the law.

The way they have done in the black money case, by laying down a policy…

Black money and all, you can’t lay down a policy. You can direct them to change the policy. But even that is going too far, stretching it too far. Judiciary is not supposed to run the government. They could have checked whether the government is acting upon it, they could have asked them to submit progress reports to the court. But what manner it is to be done, the policy matters, are to be decided by the government.

Again, in the 2G case, the court said only auction should be done…

It is all right, when there is so much corruption, then auction seems to be the only viable option. In the auction system, it is to be seen whether it (auction) is for everything, and then, how will the poor cope up with it in front of the moneybags…

Don’t you think that instead of directing for an auction, in this case where a national resource is involved, the court could have left the decision to the government?

Yes, I too feel it should have been a little flexible. Suppose you want to part with government resources to develop weaker sections of the people, the minorities etc, there you can’t impose this system, this won’t work. Suppose you have to give houses to the poor, you can’t auction them.

In the 2G case, one of the defences was that this has made mobile telephony cheaper for the masses…

There, you see, the corruption is so apparent. Some hundreds of crores have been transferred in the accounts. Had all this not happened, then I think the court would have been lenient. The court, perhaps, took all that into consideration. And it is not final, it can be reviewed sometime later.

You think it should be reviewed?

I wouldn’t say it should be. A case can be reviewed on the basis of the circumstances prevailing in that particular period of time.

There is a larger belief that the powerful get away easily even in the judicial system. However, we saw in recent cases that many powerful people were kept in pre-trial detention for a long period. Do you agree that the courts got influenced by public pressure?

(Laughs) You must never say that. I think they act on the content of law rather than public pressure. I never got swayed by public pressure. You have to give justice based on the law.

Do you think they should have got bail?

Yes, because, normally, in economic offences people get bail. But, as I told you, the reflection of society can be seen on the courts as well. There was a wave against corruption, this scam, that scam, and then, as you said, the feeling that the powerful get away easily. Sometimes the powerful don’t get bail, like in this case. All these contradictions are there. These are all opinions of society. The best way is to act according to the law.

Do you feel that many of the judgements are politically coloured?

I wouldn’t call it political. They are perhaps coloured by public opinion.

What about the Ayodhya judgement?

(Laughs) The original suit was a civil suit and they partitioned it. Partition suit is different. Where did the question of partition arise? But, then, as I said, they must have, perhaps, acted as per public opinion and gave something to all the aggrieved parties. Legally, it is not correct.

Then there is this whole debate on frivolous PILs…

Yes, it is very rampant. During my tenure, I even constituted a committee to scrutinize and look into the merits of a PIL, and whether it is fit for consideration. We made some norms. The committee of judges was to decide if the PIL has merits for the benefit of society, for people of the country. Otherwise, it was rejected.

There are allegations that some lawyers act at the behest of corporates… We have seen allegations against people like Subramanian Swamy that they are targeting one political party. Does any such thing exist?

It may be. Because even I used to get a lot of complaints that there are certain lawyers who are sponsored by corporate houses. Some corporate house gets a licence, and then the other party takes recourse to PIL. And the lawyers make a lot of money. I got many such complaints. But I did not have the power to investigate lawyers on any such complaint. I could have investigated the judges, but I could not investigate the lawyers.

How does one deal with this menace?

Actually, it is because the Bar Council is weak. The disciplinary authority in this case is the Bar Council, and it doesn’t do anything. What does a judge know if the lawyer has taken money? And then, even the media highlights (some cases).

What about the long list of pending cases? Even in the riots cases, the victims still await justice. Be it the 1984 riots, the 1992 riots in Mumbai, or even theGujaratgenocide of 2002…

This is a blot on the judiciary. But what can the judiciary do? In our country, the ratio is 13.5 judges for one million people. In the developed countries, we have 130-135 judges for every one million people. A judge has to go into the facts, the evidence, the law, before deciding a case. I even put this question to the then president, APJ Abdul Kalam. I asked him, “People say that there has been so much modernization and computerization, but can the computer decide a case on the merits of it?” No! Each fact in each case differs from the others. So, if in our country the ratio is increased to even 40 judges per million people, then things can improve a lot.

We have no infrastructure. You go to a court, you have all kinds of people roaming freely. From booksellers to the ones selling tea. Some lawyer is sitting under a tree, some others in a tea shop. You have dogs and stray cows roaming freely. Have you ever gone to the Tees Hazari Court (in Delhi) and seen how hundreds of people pile up in the court room?

I did talk to many former prime ministers, including Mrs Indira Gandhi, in this regard. But they don’t have the finances to do it. Every year there are as many as 30 lakh cases of bouncing cheques. Every year 10 lakh people die in road accidents. Each accident makes two cases. One civil and one criminal. Then, you have dacoity, murder and rape cases. And you know the kind of police we have in this country.

What are your views on the reported corruption in sections of the lower judiciary, the high courts and the Supreme Court? We have seen affidavits filed in court which accused even some former Chief Justices ofIndiaof corruption.

There is corruption. But judges come from the same society which is corrupt. It is not institutionalized. Some judges may be engaging in corrupt practices. But it is very less in high courts, and I did not see any corruption in the Supreme Court. At least till the time I was there, I did not see any case. What happened after that, I do not know. They may be giving judgements according to their ideological beliefs, some judge may be pro-tenant, some may be pro-labour, but I don’t think they are involved in any monetary corruption. After I retired, there were all these cases of corruption on Justice YK Sabharwal, Justice RC Lahoti.

Coming to the subordinate courts, it is the Chief Justice of the state’s high court who has been delegated with powers to deal with corruption. If you see states like UP, it is so big, how much work can one Chief Justice do? The moment you enter a subordinate court, you have the clerk asking for money. I have information that even some judges are corrupt. To deal with it, the institution has to come up with some mechanism. A Chief Justice can’t deal with so much work.

We have judges who suffer from all kinds of weaknesses. You give them any power and they start feeling as if they are king. And it is the subordinate courts where a common man goes. How many people are able to come to the Supreme Court or high court? A mechanism to deal with corruption in the lower judiciary is very important.

Judicial Accountability Bill also doesn’t address it…

There is no provision for the lower judiciary since it is a state subject. If you bring it under this, then the states will say it is an attack on the federal structure.

Coming back to the Supreme Court, there are allegations on former Chief Justice KG Balakrishnan? Do you think he should have resigned?

I have not seen the facts, so I can’t say much. If there is any substance in the allegations, then he should have resigned.

Now we see that even petitions are loaded with the opinions of former judges. Don’t you feel that judges, once they retire, should not give such opinions?

What will the judge do then, once he retires? The retirement age is 65. What does he do after that? He can’t practise. How can you stop him from giving opinions? It is for the courts to tell the petitioner to not get such opinions. Yes, a judge should not take up any government assignment post-retirement.

Any concluding remarks…

There is need for a code of conduct for judges. There should be an element of restraint. They should exhibit honesty, impartiality and fairness, and should strive for the promotion of the weaker sections of society.

The way the situation is currently unfolding inPakistan, with the Supreme Court indicting the democratically elected prime minister – will it have any repercussions here?

No, I don’t think so. The courts here debarred Indira Gandhi from contesting elections. It is not bigger than that.

At 10:30 a.m on February 9 (Saturday) I was just putting my bag in my car to leave for office, I saw two persons in the compound who enquired about the house of Geelani saab. I asked them which Geelani saab are you searching for, making out they could be from some courier agency to deliver some mail for me? They replied that they are searching for a Kashmiri leader, who lives somewhere in the colony. I told them he lives in the opposite block and tried to give them directions. One of them requested, if I can accompany them.
So I did. On the way, they told me they are from Delhi Special Cell. When we reached at JD18 E block of Khirki Ext. I saw a crowd of plain clothesmen in the gulley. I just pointed out to first floor and told them there lives Geelani saab, you are searching for. As I started to withdraw, they grabbed my hand and said they need few minutes to talk to me. And virtually dragged me to first floor flat, taking away my purse, identity card, keys etc. They could not trace my phone till then, though they were insisting to hand over phone to them. Upon reaching the flat, I saw many more people inside. As they got busy with conversation to some other person, I managed to go to bathroom and sent SMS to my office and some friends. When I was back, they noticed the phone and took it away.
After 15 minutes, I saw my wife also arriving at this house, escorted by two male plain cloth police wala.. My children were alone at my house. I repeatedly asked them to explain reasons behind my detention. All the time, they were very rude, threatening and warning me of dire consequences. I also pleaded with them, even if they want to detain me, why at the house of Syed Ali Geelani and not at my own home or a police station? And why had they kept children away from us?
After five hours, I heard many voices from outside. One officer type person came and shouted that I am free and can leave this house. In the by-lane I saw my office people including bureau chief Saikat Dutta and some other friends including, Aurangzeb Naqashbadni of Hindustan Times. They had used every available contact in home ministry and Delhi police to make them see reason. When I reached my home, some 7-8 strangers were occupying drawing room and living room and they had locked up my children in a bed room that does not have even bathroom facility.
When I reached there with friend, the strangers started leaving one by one. Saying that my children were terrified would be an understatement. They recalled how these people in our absence banged the door and asked them to confine themselves in bed room. They were also shouting at neighbours why they allow person like me to live there.
I have no issue with what government wanted to do to maintain law and order in Delhi or elsewhere. Repeatedly in public domains, I have affirmed that I have nothing to do with the politics of my father-in-law Syed Ali Geelani.
I owe my living to journalism for over past two decades in Delhi. I feel totally distraught with the behaviour of security agencies, particularly special cell of Delhi police. I feel so scared. I try my best to raise my children in an atmosphere of peace and compassion. I have no idea, what should I do to prove myself to be a peace loving and a law abiding citizen.
As Frederick Douglass says, the life of the nation is secure only when the nation is honest, truthful and virtuous. I may add, the subjugation, harassment, and trampling on rights only makes the nation weak and insecure in the long run, though it may address to the rhetorical class and accrue short term gains.

I have a bad experience of the same Special Cell of Delhi Police putting me in Tihar Jails in 2002 on false charges and forging documents of the Defence Ministry to convince the court that I am a Pakistani agent supplying sensitive information to its High Commission. The officials who then raided my house even cooked up my bank accounts to claim I was sending Hawala money to Kashmiri terrorists. Many fictitious stories were also planted by them in media tarnishing my reputation. The cooked-up charges under the Official Secrets Act were withdrawn and I was honourably acquitted by the court, but only after eight months of harrowing custody. At the time of my then arrest in 2002, the Intelligence Bureau also made the Income Tax Department fabricate tax charges against me. I am continuously harassed by the Income Tax Department with recovery notices from time to time despite I moving the Delhi High Court to end my harassment as it keeps on adding penalty and fine for not paying dues that now total up to over Rs 60 lakhs that I just cannot afford to pay with my present salary. I am bringing this fact to your knowledge, just to draw your attention to various ways I am continuously hounded and harassed.

With thanks,

Iftikhar Gilani

10 February 2013

To

The Home Secretary,

Government of India.

New Delhi

Dear Sir,

I am forwarding to you an email I have received from Mr. Iftikhar Gilani, Asst. Editor DNA, who is a Government of India accredited journalist and former Vice President of the Press Association.

I have carefully perused the email he has sent me and I have also read the news item in the front page of today’s The Hindu newspaper. They reveal great high handedness and outrageous behaviour by the Delhi policemen concerned in harrassing and tormenting Mr. Gilani and his family, including his small children. These were the undemocratic and abhorrent methods of the Gestapo during Nazi rule.

If these allegations are correct, the concerned police officers, who committed these high-handed illegal acts, as well as those higher ups who were instrumental in ordering these shameful and odious acts are prime facie guilty of serious crimes under sections 341/342, as well as other provisions of the Indian Penal Code and are also guilty of gross and blatant abuse of their powers.

Hence, if the allegations in the email of Mr Gilani are correct, I call upon you to do the following acts within 48 hours :

(i) immediately charge sheet and place under suspension all police officers responsible for these high handed and illegal acts including those higher ups who gave the orders for them

(ii) immediately institute criminal proceedings against such officers under the relevant provisions of IPC and other statutes.

(iii) immediately sanction adequate and suitable compensation to Mr Gilani and his family and convey an apology to him

(iv) I am informed that Mr. Gilani is still being harassed and surveillance is being done on him and his family. This is a clear violation of the decision of the Supreme Court in Kharak Singh Vs State of UP and other AIR 1963 S.C.1295,1964 SCR (1) 332, as well as violation of the right to privacy , which has been held to be part of Art 21 of the Constitution of India. Police surveillance seriously encroaches upon privacy of the petitioner and his fundamental rights under Art 21 vide 1999 (24) All Cr. R. 815 (817): 1999 (11).

I may mention that in the Nuremburg Trials held in after the Second World War the Nazi War Criminals took the plea that orders are orders, and that they were only obeying the orders of their superior Hitler. This plea was rejected by the International Tribunal which held that those orders were illegal orders and hence should have been disobeyed. Consequently many of the accused were hanged.

Hence all policemen in India are hereby warned that they should not carry out illegal orders of their superiors otherwise they will be charged for serious crimes, and if found guilty, severely punished.

New Delhi: Press Council chairman Justice Markandey Katju has hit out at the Union Home Ministry over detention of Kashmiri journalist Iftikhar Gilani. In a hard-hitting letter to Union Home Secretary RK Singh, Katju condemned Iftikhar’s detention and said that policemen who were involved in the “illegal act” should be suspended and prosecuted.

The Editors Guild of India also condemned his detention saying the Delhi Police owned him an apology. “The police gave no reason for their unwarranted action. It is a matter of relief that he was released after protests by various journalist bodies and individual journalists, and the resultant intervention by the ministry of home affairs,” the Guild said in a statement on Sunday.

The Delhi Union of Journalists condemns the unwarranted and blatantly illegal action of the Delhi Police in detaining renowned journalist and well known writer, Iftikhar Gilani and the harassment to his family on February 9, 2013.

We take stern note of the fact that this is not the first time that Gilani has been subjected to this sort of agony and trauma.

On receiving information of Gilani’s illegal detention, the DUJ General Secretary, S K Pande tried to get in touch with the Delhi Police Commissioner and other concerned authorities, in vain. The Commissioner’s office informed that the Commissioner was unavailable, while other officers played hide and seek.

The Delhi Union of Journalists will be organizing a protest meeting in consultation with other journalists and press bodies in Delhi.

In the meanwhile, the DUJ calls for immediate action against the police officials responsible for this manifestly illegal act of detaining Gilani.

The mere passage of laws and amendments will fail to make a dent when police forces enjoy impunity, society remains deeply patriarchal and son-preference as well as other anti-female practices remain.

Violence against women and sexual harassment are such daily occurrences that only the most egregious and horrendous make front page news, although other not so prominent incidents are stored away in the collective conscience.

“Guilt” and – in South Asia – “family honour” have a powerful hold, and most incidents of even horrific violence get suppressed.

But the gruesome gang-rape of a young woman in a bus in New Delhi in mid-December, the long wait for reports of her precarious condition and her eventual death caught the conscience of most Indians with access to mass media.

Although there are continuing questions on the part of the marginalized sections of India as to why the rapes and gang-rapes that members of their communities suffer regularly fail to be noticed by the mainstream media, there seems to be a consensus of hope that this is a moment for possible future change in gender relations in India.

It has been likened to the Tunisian and the Egyptian pro-democracy movements of 2011. Another comparison could be with the two Tiananmen movements – of 1976 following the death of Zhou Enlai and the 1989 in the wake of former Chinese communist party general secretary Hu Yaobang’s passing away. The first had the tacit backing of Deng Xiaoping who was soon to emerge as the supreme leader and usher in economic reforms while keeping a tight lid on dissent. The second Tiananmen incident led to a tightening of the regime before an acceleration of economic reforms that have led to runaway growth alongside massive corruption, denial of trade union rights, discrimination against migrants and other problems the people cannot protest about.

While India is a chaotic democracy, it too is at a crossroads. The current upsurge that has affected most cities, where large numbers of people have staged spontaneous demonstrations, could be harnessed for real change towards making India a less violent place for women as well as for children and old people, or it could see it turn towards being one where retribution and insecurity rule.

The incident and its aftermath have been making front page news for weeks now. Hindu chauvinists and other conservatives have been falling over each other in coming up with bizarre suggestions – one wants women to stayconfined to their households, while another wants them to call a would-be rapist ‘brother’ and beg for mercy. Meanwhile the what-was-she-wearing crowd has been active and vocal.

One outstandingly disturbing aspect of the reactions to the gang-rape has been widespread and shrill demand for harsh punishments for the gang-rape accused. While calls to hang them quickly are widespread, other frequently aired demands are for them to be castrated and given Saudi-style punishments. Hundreds of mostly young people around the country have held placards calling for the accused to be hanged or castrated, or subject to other violent punishments.

Among the bizarre reactions and demands is one asking lawyers not to represent the rapists. No one, not even those the whole world deems responsible for the most monstrous of acts, ought to be exempt from the presumption of innocence until proven guilty. Legal representation is a fundamental right and it should have been taken for granted that all lawyers are duty-bound by the “cab rank rule” – to take on a brief so long as they have no conflict of interest. But two bar associations in New Delhi have openly declaredthat they would not appear for the alleged gang-rapists.

“Professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing a resolution that none of its members will appear for a particular accused, whether on the ground that he is a suspected terrorist, rapist, mass murderer, etc, is against all norms of the Constitution, and professional ethics,” Justice Katju said in a newspaper article.

Other than Justice Katju’s comment, there has been silence from the leading lights of India’s judiciary, from politicians as well as from the media. Hardly anyone else has spoken out against such calls which have been heard each time the public and the media deems someone massively guilty.

There were pressures against representing Ajmal Kasab, the Pakistani sole survivor from the group that staged a terror attack on Bombay on 26 November 2008 causing scores of deaths. Kasab was hanged in secret on 21 November 2012. A large number of witnesses and cameras captured his image while he was on a shooting spree in a railway station and it was a foregone conclusion that he was guilty as charged. However even he ought not to have been denied due process but questions have been raised as to whether that happened. Lawyers have argued that one of those on death row in India now, Mohammed Afzal Guru, lacked proper legal counsel and did not get a fair trial.

India’s dysfunctional government has been found wanting in its response to demands for summary punishment for rapists and other similar violent calls. Leadership has been sadly lacking at a time when public fury has to be channeled in constructive directions.

About the only positive decision the government has taken in recent weeks was the formation of the Justice Verma Committee to recommend amendments to Indian laws dealing with sexual assault. But mere passage of laws and amendments will fail to make a dent when police forces enjoy impunity, society remains deeply patriarchal and son-preference as well as other anti-female practices remain.

In the coming weeks and months, the judiciary, the government and the media could either handle the case of the gang-rapists with sobriety, to douse public demands for harsh retribution and to begin the spadework for turning India into a genuinely law-abiding country. Or it could succumb to populist rhetoric and cave in to calls for hanging and other violent punishments, usher in tough-talking leaders and turn India into even more of a faux democracy than it is now.